Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to a Tidal Marsh Restoration Project, 67297-67311 [2016-23617]

Agencies

• DEPARTMENT OF COMMERCE
• National Oceanic and Atmospheric Administration

[Federal Register Volume 81, Number 190 (Friday, September 30, 2016)]
[Notices]
[Pages 67297-67311]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23617]


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DEPARTMENT OF COMMERCE

National Oceanic and Atmospheric Administration

[0648-XE687]


Takes of Marine Mammals Incidental to Specified Activities; 
Taking Marine Mammals Incidental to a Tidal Marsh Restoration Project

AGENCY: National Marine Fisheries Service (NMFS), National Oceanic and 
Atmospheric Administration (NOAA), Commerce.

ACTION: Notice; proposed incidental harassment authorization; request 
for comments.

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SUMMARY: NMFS has received a request from the California Department of 
Fish and Wildlife--Central Region (CADFW) for authorization to take 
marine mammals incidental to construction activities as part of a tidal 
marsh restoration project within the Minhoto-Hester Marsh in Elkhorn 
Slough (Monterey, CA). Pursuant to the Marine Mammal Protection Act 
(MMPA), NMFS is requesting comments on its proposal to issue an 
incidental harassment authorization (IHA) to the CADFW to incidentally 
take marine mammals, by Level B harassment only, during the specified 
activity.

DATES: Comments and information must be received no later than October 
31, 2016.

ADDRESSES: Comments on the applications should be addressed to Jolie 
Harrison, Chief, Permits and Conservation Division, Office of Protected 
Resources, National Marine Fisheries Service. Physical comments should 
be sent to 1315 East-West Highway, Silver Spring, MD 20910 and 
electronic comments should be sent to ITP.Egger@noaa.gov.
    Instructions: NMFS is not responsible for comments sent by any 
other method, to any other address or individual, or received after the 
end of the comment period. Comments received electronically, including 
all attachments, must not exceed a 25-megabyte file size. Attachments 
to electronic comments will be accepted in Microsoft Word or Excel or 
Adobe PDF file formats only. All comments received are a part of the 
public record and will generally be posted online at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm without change. All personal 
identifying information (e.g., name, address) voluntarily submitted by 
the commenter may be publicly accessible. Do not submit confidential 
business information or otherwise sensitive or protected information.

FOR FURTHER INFORMATION CONTACT: Stephanie Egger, Office of Protected 
Resources, NMFS, (301) 427-8401.

SUPPLEMENTARY INFORMATION: 

Availability

    An electronic copy of the CADFW's application and supporting 
documents, as well as a list of the references cited in this document, 
may be obtained online at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. In case of problems accessing these documents, please 
call the contact listed above.

National Environmental Policy Act

    In August 2010, NMFS' Office of Habitat Conservation prepared a 
Targeted Supplemental Environmental Assessment (TSEA) for a similar 
tidal restoration project in Parson's Slough, a tidal marsh adjacent to 
the project area (both in Elkhorn Slough). The TSEA assessed the 
potential adverse environmental impacts of this project specific to 
marine mammals. Additional potential impacts to other elements of the 
human environment from this type of project were incorporated by 
reference in the TSEA. NMFS has reviewed the TSEA and believes it 
appropriate to write a Supplemental EA (based on the TSEA) in order to 
assess the impacts to the human environment of issuance of an IHA to 
CADFW and subsequently sign our own Finding of No Significant Impact. 
In addition, information in the CADFW's application, CADFW's Initial 
Study and Mitigated Negative Declaration (prepared June 2015 pursuant 
to the CA Environmental Quality Act of 1970 (CEQA)), the Elkhorn Slough 
National Estuarine Research Reserve (ESNERR) Biological Assessment 
(prepared September 2015), and this notice collectively provide the 
environmental information related to the proposed issuance of this IHA 
for public review and comment. All documents are available at the 
aforementioned Web site. We will review all comments submitted in 
response to this notice as we complete the National Environmental 
Policy Act (NEPA) process prior to a final decision on the incidental 
take authorization request.

Background

    Sections 101(a)(5)(D) of the MMPA (16 U.S.C. 1361 et seq.) direct 
the Secretary of Commerce to allow, upon request by U.S. citizens who 
engage in a specified activity (other than commercial fishing) within a 
specified geographical region if certain findings are made and either 
regulations are issued or, if the taking is limited to harassment, a 
notice of a proposed authorization is provided to the public for 
review.
    Authorization for incidental takings shall be granted if NMFS finds 
that the taking will have a negligible impact on the species or 
stock(s), will not have an unmitigable adverse impact on the 
availability of the species or stock(s) for subsistence uses (where 
relevant), and if the permissible methods of taking and requirements 
pertaining to the mitigation, monitoring and reporting of

[[Page 67298]]

such takings are set forth. NMFS has defined ``negligible impact'' in 
50 CFR 216.103 as ``. . . an impact resulting from the specified 
activity that cannot be reasonably expected to, and is not reasonably 
likely to, adversely affect the species or stock through effects on 
annual rates of recruitment or survival.''
    Section 101(a)(5)(D) of the MMPA established an expedited process 
by which citizens of the U.S. can apply for an authorization to 
incidentally take small numbers of marine mammals by harassment. 
Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of 
an application followed by a 30-day public notice and comment period on 
any proposed authorizations for the incidental harassment of marine 
mammals. Within 45 days of the close of the comment period, NMFS must 
either issue or deny the authorization. Except with respect to certain 
activities not pertinent here, the MMPA defines ``harassment'' as ``any 
act of pursuit, torment, or annoyance which (i) has the potential to 
injure a marine mammal or marine mammal stock in the wild [Level A 
harassment]; or (ii) has the potential to disturb a marine mammal or 
marine mammal stock in the wild by causing disruption of behavioral 
patterns, including, but not limited to, migration, breathing, nursing, 
breeding, feeding, or sheltering [Level B harassment].''

Summary of Requests

    On June 2, 2016, we received an application from the CADFW for 
authorization to take marine mammals incidental to construction 
activities associated with a 47-acre tidal marsh restoration project 
within the Minhoto-Hester Marsh in Elkhorn Slough (Monterey, CA) (Phase 
1). The overall Elkhorn Slough Tidal Marsh Restoration Project would 
restore a total of 147 acres; however, future phases are not part of 
this application as they are currently unfunded and present some 
additional technical challenges. Another IHA request will be made prior 
to implementation of any proposed future phases. The CADFW submitted 
revised versions of the application on July 13, 2016, August 2, 2016, 
August 29, 2016, and a final application on September 6, 2016 which we 
deemed adequate and complete.
    The proposed activity would begin between October 2016 and February 
2017 and last approximately 11 months with built in buffers for adverse 
weather and other conditions when work is not possible. Pacific harbor 
seal (Phoca vitulina richardii) and southern sea otters (Enhydra lutris 
nereis) are expected to be present during the proposed work. Southern 
sea otters are managed by the U.S. Fish and Wildlife Service and will 
not be considered further in this proposed IHA notice. Construction 
activities are expected to produce noise and visual disturbance that 
have the potential to result in behavioral harassment of harbor seals. 
NMFS is proposing to authorize take, by Level B Harassment, of harbor 
seals as a result of the specified activity.

Description of the Specified Activities

Overview

    The CADFW proposes to restore approximately 47 acres of tidal marsh 
within the Minhoto-Hester Marsh in Elkhorn Slough (Monterey, CA) and 
additional tidal marsh, upland ecotone, native grasslands restoration 
within a buffer area (Phase 1). This work would require approximately 
170,000 cubic yards (cy) of fill to raise the marsh to an elevation 
that would allow emergent wetland vegetation to naturally reestablish 
and persist. The work would also require maintaining or re-excavating 
existing tidal channels and excavating within the upland buffer area to 
restore habitat. The slough system has historically faced substantial 
tidal wetland loss related to prior diking and marsh draining, and is 
presently facing unprecedented rates of marsh degradation.
    The CADFW intends to restore tidal marsh to reduce tidal erosion, 
improve water quality, provide sea-level rise resilience, increase 
carbon sequestration, and improve ecosystem function that have been 
altered by past land use practices.

Dates and Duration

    Under the proposed action, 132 days of construction activities and 
four days of vibratory pile driving (total 136 days of project 
activities) related to the tidal marsh restoration would occur over an 
11-month period. The 11-month period is a conservative estimate and 
includes ecotone and grassland restoration work as well. Most of the 
work on the marsh plain would be completed within six to eight months. 
The construction period assumes that the construction contractors would 
work between the hours of 5:00 a.m. to 6:00 p.m., Monday through 
Friday, only during daylight hours. However, some construction activity 
may also be required during these times on Saturdays. The proposed IHA 
would be valid for one year from the date of issuance, with project 
start expected between October 2016 and February 2017.

Specific Geographic Region

    The proposed project is located in the Elkhorn Slough estuary, 
situated 90 miles south of San Francisco and 20 miles north of 
Monterey, is one of the largest estuaries in CA and contains the 
State's largest salt marshes south of San Francisco Bay (see Figure 1-1 
of the application). The Elkhorn Slough is a network of intertidal 
marshes, mudflats, and subtidal channels located at the center of the 
Monterey Bay shoreline. The restoration will occur specifically in the 
Minhoto-Hester Marsh (project area) within the Slough, and is a low-
lying area consisting of marsh, intertidal mudflats, tidal channels and 
remnant levees. The project area is on land owned and managed by CADFW 
as part of the ESNERR (see Figure 1-2 of the application). One Marine 
Protected Area (MPA), a State Marine Reserve is located within the 
project area. Two additional MPAs are located within one mile of the 
project area. The Minhoto-Hester Marsh has multiple cross-levees and 
both natural and dredged channels with a major dredged channel (100+ 
feet (ft) wide in some locations) that runs north to south through the 
remnant marsh.
    Over the past 150 years, human activities have altered the tidal, 
freshwater, and sediment processes which are essential to support and 
sustain Elkhorn Slough's estuarine habitats. Fifty percent of the tidal 
salt marsh in the Slough has been lost during this time period. This 
habitat loss is primarily a result of two historic land use changes, 
(1) construction of a harbor at the mouth of the Slough and the related 
diversion of the Salinas River, which lead to increased tidal flooding 
(and subsequent drowning of vegetation) and (2) past diking and 
draining of the marsh for use as pasture land. The act of draining 
wetlands led to sediment compaction and land subsidence, from one to 
six feet. Decades later, the dikes began to fail, reintroducing tidal 
waters to the reclaimed wetlands. Rather than converting back to salt 
marsh, the areas converted to poor quality, high elevation intertidal 
mudflat, as the lowered landscape was inundated too frequently to 
support tidal marsh, and insufficient sediment supply was available in 
the tidal waters to rebuild elevation. The loss of riverine sediment 
inputs, continued subsidence of marsh areas, sea level rise, increased 
salinity, and increased nutrient inputs may also contribute to marsh 
loss (Watson et al., 2011). Bank and channel erosion in the Elkhorn 
Slough are leading to deepening and widening tidal creeks, causing salt 
marshes to collapse into the

[[Page 67299]]

channel, and eroding sediments that provide important habitat and 
support estuarine food webs.

Detailed Description of Activities

    The CADFW plans to raise the subsided former marsh plain (currently 
mostly too low to sustain vegetation) to mid-high marsh plain 
elevations over an area of approximately 47 acres (see Figure 1-3 of 
the application). Approximately 167,000 cy of sediment is required for 
implementation of the proposed project. The CADFW will use 50,000 cy of 
imported sediment, along with approximately 117,000 cy of sediment 
excavated from existing upland areas of the project site, to achieve 
the requisite 167,000 cy necessary for project implementation. Sediment 
would be placed to a fill elevation slightly higher than the target 
marsh plain elevation to allow for settlement and consolidation of the 
underlying soils. The average fill depth would be 2.1 ft, including 25 
percent overfill.
    Table 1, below, presents the acreages and extents of proposed fill 
within each marsh sub-area, as well as the volume of fill required for 
each marsh sub-area to be restored. The stockpiled Pajaro Bench soils 
and onsite borrow would be used as fill sources. The project would rely 
primarily on natural vegetation recruitment in the restored marsh 
areas.

                                Table 1--Volume of Fill Required in Each Sub-Area
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                                                                    Fill volume
 Project component/staging area    Area (acres)      Fill area       (range in
                                                      (acres)      cubic yards)
--------------------------------------------------------------------------------
Phase 1
    Sub-area M1.................            12.1             9.5       28,000 to
                                                                         43,700.
    Sub-area M2.................             5.6             4.5       10,700 to
                                                                         17,700.
    Sub-area M3.................            11.1             8.3       27,000 to
                                                                         41,000.
    Sub-area H1.................            17.8            14.1       42,100 to
                                                                         65,300.
                                 -------------------------------------------------------------------------------
        Subtotal Phase 1........              47              36      107,900 to
                                                                        167,800.
                                 -------------------------------------------------------------------------------
            Total Phase 1.......              47              36      107,900 to
                                                                        167,800.
----------------------------------------------------------------------------------------------------------------
Note: Volumes in presented in this table are mid-range estimates; actual volumes may be higher or lower.
Source: Environmental Science Associates, 2014 Final Elkhorn Slough Tidal Marsh Restoration Project Restoration
  Plan, July 1, 2014.

    Water Control and Tidal Channels of the Restoration Area--Work 
areas on the remnant marsh plain would for the most part be isolated 
from the tides and dewatered to allow construction in non-tidal 
conditions. Water control structures such as temporary berms would be 
utilized to isolate the fill placement area during the construction 
period. Existing berms would be used, where possible. There are a 
number of potential configurations to isolate the fill placement area 
which will depend on the workflow of the contractor chosen. For this 
application, CADFW has identified the water control option with the 
greatest potential impact to marine mammals would be a sheet pile wall 
at the mouth of the project area (see Figure 1-3 of the application). 
If a sheet pile is required to be installed at the tidal entrance to 
the project area, four days of vibratory pile driving would occur. It 
is also possible that the mouth of the project area may be closed with 
an earthen dam or an inflatable dam; therefore, the sheet pile would 
not be necessary. The isolated work areas would be drained using a 
combination of gravity and pumps. Water levels within the blocked areas 
would be managed to keep them mostly free of water (with some ponded 
areas remaining) and to allow fill placement at all stages of the 
tides. To reduce the potential for fish to become entrained in isolated 
ponded areas, blocking of tidal channels would occur at low tide. When 
sediment placement is completed, the berms would be lowered to the 
target marsh elevation, reintroducing tidal inundation.
    Remnant historic channels onsite would generally be left in place 
or filled and re-excavated in the same place. As needed for marsh 
access, smaller channels would be filled. Avoidance of channel fill, 
temporary and permanent, is preferred. As much of the existing tidal 
channel network would be maintained as is feasible, and the post-
project channel alignments would be similar to those under existing 
conditions. The density of channels (length of channel per acre of 
marsh) after restoration would be comparable to the density in natural 
reference marshes. Low levees (less than 0.5 ft above the marsh plain) 
composed of fill material would be constructed along the larger 
channels to simulate natural channel levees. The project would recreate 
natural levee features along the sides of the main channel into the 
Minhoto-Hester Marsh. Fill would be placed as close to the edge of the 
channel as possible to simulate the form and function of a natural 
channel bank. Borrow ditches that date from the times of historical 
wetland reclamation in these areas would be blocked or filled 
completely if fill is available after raising the marsh plain. Blocking 
borrow ditches would route more flow through the natural channels and 
slightly increase hydraulic resistance, which may achieve benefits from 
reducing tidal prism and associated scour in the Elkhorn Slough system.
    To limit trip distances onto the marsh, the project would employ 
one or more of the following placement approaches. Temporary channel 
crossings may be constructed, or tidal channels may be temporarily 
filled and then re-dug with an excavator or backhoe. If re-excavation 
of the smaller channels proves infeasible, these channels may be 
permanently filled, the resulting channel extent consisting of the 
larger channels only. The resulting channel extent would be sufficient 
to provide drainage and tidal exchange to support natural marsh 
functions. The number and locations of channel crossings would depend 
on the tradeoff between haul distances and the ease of installing and 
removing the crossings. Where tidal channels were maintained in place,

[[Page 67300]]

turbidity control measures (i.e., Best Management Practices (BMPs), 
such as hay bales or weed free straw wattles) could be staked down in 
or adjacent to the channels to be preserved. Bulldozers would push fill 
up to the hay bales and wattles, but not into the channels. Channel 
crossings and BMPs would be removed at project completion.
    Buffer Area--The buffer area would be graded to increase marsh area 
and create a gently sloping ecotone band along the edge of the restored 
marsh. Specifically, excavation would widen the existing marsh (by up 
to 150 ft) and create a band of gentle slope (e.g., 1:30) on the 
hillside, fostering creation of a wider ecotone habitat. The remaining 
buffer area would be restored to native grassland habitat. The north 
end of the buffer area (adjacent to M4 and M6) would be restored in a 
later phase so this area could be used to stockpile material for future 
placement on subareas M4, M5, and M6 (see Figure 1-3 of the 
application).
    Construction Sequencing and Equipment--Construction sequencing 
would begin with water management and/or turbidity control measures 
constructed around the work areas prior to placing material on the 
marsh. After fill placement on the marsh, any temporary features, such 
as water management berms, sheet pile and culverts, would be removed. 
Construction equipment would include haul trucks, heavy earthmoving 
equipment, such as dozers, backhoes, loaders, and excavators to 
transport dry material out onto the marsh. All heavy equipment used to 
transport dry material out onto the marsh would be of low ground 
pressure to prevent sinking in the mud. Mats would be temporarily 
placed on the marsh, as needed, to spread the weight of the equipment. 
A conveyor system could also be used to transport dry material from the 
stockpile out to the marsh, in lieu of dozers pushing the material the 
full distance. In the latter case, a loader would continuously load the 
conveyor system with material near the stockpile, and a dozer at the 
marsh drop off location would spread the material. A conveyor system 
may increase construction time as it would need to be assembled and 
taken apart to move it to new areas. A conveyor system is also likely 
cost prohibitive. At the end of construction in each cell/stage, any 
elevated haul roads and/or berms constructed to aid in material 
placement would be excavated to design grades, with the resulting earth 
used to fill adjacent restoration areas.
Description of Marine Mammals in the Area of the Specified Activity
    The marine mammal species under NMFS jurisdiction occurring in the 
proposed project area is the Pacific harbor seal. In the harbor seal 
account provided here, we offer a brief introduction to the species and 
relevant stock as well as available information regarding population 
trends and threats, and describe any information regarding local 
occurrence (Table 2). Please also refer to NMFS' Web site (https://www.fisheries.noaa.gov/pr/species/mammals/seals/harbor-seal.html) for 
the generalized harbor seal account and see NMFS' Stock Assessment 
Reports (SAR), available at www.nmfs.noaa.gov/pr/sars, for more 
detailed accounts of the harbor seal stocks' status and abundance. The 
harbor seal is assessed in the Pacific SAR (Carretta et al., 2016).

Harbor Seal Overview and Regional Status

    Harbor seals inhabit coastal and estuarine waters and shoreline 
areas of the northern hemisphere from temperate to polar regions. The 
eastern North Pacific subspecies is found from Baja California north to 
the Aleutian Islands and into the Bering Sea. Multiple lines of 
evidence support the existence of geographic structure among harbor 
seal populations from California to Alaska (O'Corry-Crowe et al., 2003; 
Temte, 1986; Calambokidis et al., 1985; Kelly, 1981; Brown, 1988; 
Lamont, 1996; Burg, 1996). Harbor seals are generally non-migratory, 
and analysis of genetic information suggests that genetic differences 
increase with geographic distance (Westlake and O'Corry-Crowe, 2002). 
However, because stock boundaries are difficult to meaningfully draw 
from a biological perspective, three separate harbor seal stocks are 
recognized for management purposes along the west coast of the 
continental United States: (1) Inland waters of Washington; (2) outer 
coast of Oregon and Washington; and (3) California (Carretta et al., 
2016). This IHA addresses seals from the California stock only.

                                                         Table 2--Harbor Seal Status Information
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                                                    (ES)/MMPA
                                                     status;       Stock abundance  (CV, Nmin, most             Annual M/      Relative occurrence in
           Species                   Stock        strategic  (Y/     recent abundance survey) \2\     PBR \3\     SI \4\     Elkhorn Slough; season of
                                                      N) \1\                                                                         occurrence
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                                                             Family Phocidae (earless seals)
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Harbor seal..................  California......  -; N             30,968 (n/a; 27,348; 2012).......      1,641       42.8  Common; year-round.
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed
  under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality
  exceeds PBR (see footnote 3) or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species
  or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock.
\2\ CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For certain stocks of
  pinnipeds, abundance estimates are based upon observations of animals (often pups) ashore multiplied by some correction factor derived from knowledge
  of the species (or similar species) life history to arrive at a best abundance estimate; therefore, there is no associated CV. In these cases, the
  minimum abundance may represent actual counts of all animals ashore. The most recent abundance survey that is reflected in the abundance estimate is
  presented; there may be more recent surveys that have not yet been incorporated into the estimate.
\3\ Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a
  marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size (OSP).
\4\ These values, found in NMFS' SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial
  fisheries, subsistence hunting, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value. All
  values presented here are from the final 2015 Pacific SAR. (https://www.nmfs.noaa.gov/pr/sars/region.htm).

Local Abundance and Habitat Use

    Harbor seals use Elkhorn Slough for hauling out, resting, 
socializing, foraging, molting and reproduction, but mainly use it as a 
staging area for foraging in the Monterey Bay, as there is a limited 
amount of foraging in the Slough (McCarthy, 2010). Harbor seals inhabit 
Elkhorn Slough year-round and occur individually or in groups, but 
their abundance may change seasonally

[[Page 67301]]

depending on prey availability, molting, and reproduction (McCarthy, 
2010). Counts of harbor seals in the greater Elkhorn Slough began in 
1975 and at that time averaged about 30 seals (Harvey et al., 1995; 
Oxman, 1995). Counts conducted by Osborn (1985) in 1984 averaged 35 
seals, and during 1991, maximum counts reported by Oxman (1995) were 
five times greater. Oxman also reported a 20 percent increase between 
1990 and 1991, from 150 to 180 seals. Average counts remained 
comparable from 1994 through 1997, with peaks coinciding with pupping 
and molting seasons (pupping season is April--June with molting in July 
following the pupping season) (Oxman 1995). A count of 339 seals was 
reported in 1997 (Jones, 2002; Richman, 1997). The population in the 
greater Elkhorn Slough is currently estimated at 300 to 500 seals 
(McCarthy, 2010). Harbor seal count data as reported were collected 
from a variety of sources using various methodologies. Data sources 
included former graduate student research, occasional counts by Dr. Jim 
Harvey, Director at Moss Landing Marine Laboratories, and ESNERR staff 
observations.
    Harbor seals have utilized the Elkhorn Slough as a resting site 
since the 1970s, but the first births were not recorded until 1991 
(Maldini et al., 2010). Harbor seals have used Elkhorn Slough for 
reproduction for the past two decades. From 1995 to 1997, there was a 
significant annual increase in pups, from 14 seals in 1995 to 29 seals 
in 1997 (Richman, 1997). Pupping can occur throughout the year, but 
generally starts in late March and peaks in May (McCarthy, 2010). Some 
seals may depart during pupping/breeding season to other breeding areas 
outside of Elkhorn Slough. Females tend to remove themselves from the 
group to give birth and return within a week (McCarthy, 2010). In 2010, 
50 pups were observed in Elkhorn Slough (J. Harvey unpublished data in 
McCarthy, 2010). No births have been documented in the project area and 
it is not likely that neonates will be in the project area as females 
prefer to keep their pups along the main channel of Elkhorn Slough, 
which is outside the area expected to be impacted by project 
activities.
    Harbor seals usually occupy areas just beyond the mouth of Elkhorn 
Slough in the Moss Landing Harbor and in the Salinas River channel 
south of the Moss Landing bridge and the lower portion of Elkhorn 
Slough extending up to Parson's Slough and Rubis Creek. They typically 
use the corridor from the mouth of Elkhorn Slough through the Moss 
Landing Harbor entrance for nightly feeding in Monterey Bay (J. Harvey, 
pers. comm. in McCarthy, 2010). In a diet study conducted between 1995 
and 1997, 35 species including topsmelt, white croaker, spotted cusk-
eel, night smelt, bocaccio, Pacific herring, a brachyuran crustacean, 
and four genera of mollusks were consumed by harbor seals (Harvey et 
al., 1995 in McCarthy, 2010).

Seal Haul Outs Potentially Impacted by Project Activities

    In the eastern part of Elkhorn Slough, harbor seals primarily use 
two sub-areas to haul out, the Minhoto-Hester Marsh Complex (project 
area and the area just outside the project) and the area in and around 
Parson's Slough (see Figures 4-4 and 4-3 of the application, 
respectively). Monitoring was completed in 2013 to document the 
abundance and distribution of harbor seals utilizing the Minhoto-Hester 
Marsh Complex to determine potential impacts from the proposed project 
(Beck, 2014). Eight harbor seal haul out sites were identified in the 
Minhoto-Hester Marsh Complex, which also included haul-outs in portions 
of the Yampah Marsh adjacent to Minhoto-Hester Marsh (see Figure 4-5 of 
the application). Four of these haul out sites are within the footprint 
of the construction area and will be inaccessible during construction, 
but available again after construction. To better assess which areas of 
Minhoto-Hester Marsh were used by seals, haul out sites were 
categorized as either inside or outside the footprint of the 
construction area. The four haul out sites within the footprint of the 
construction area are remnant berms on the interior of the marsh, 
identified as Small Island, M2 North, M3 North and M3 East (see Figure 
4-5 of the application). Four haul out sites, just beyond the footprint 
of the construction area, are on the edge of the marsh nearest the main 
channel of Elkhorn Slough, and identified as M5 Northeast, M5 
Southeast, Yampah Northwest and Yampah Southwest (see Figure 4-5 of the 
application). In 2013, the maximum number of seals counted from those 
eight haul out sites totaled 94 seals (Beck, 2014). In the Parson's 
Slough Complex, adjacent to the project area, approximately 100 seals 
use the exposed mudflats during low tide to haul out on six haul out 
sites. The closest haul out in the Parson's Slough Complex is located 
1,300 feet northeast of the project area.
Potential Effects of the Specified Activity on Marine Mammals
    This section includes a summary and discussion of the ways that 
components of the specified activity (e.g., construction inclusive of 
short term pile driving) may impact marine mammals. This discussion 
also includes reactions that we consider to rise to the level of a take 
and those that we do not consider to rise to the level of a take (for 
example, with acoustics, we may include a discussion of studies that 
showed animals not reacting at all to sound or exhibiting barely 
measurable avoidance). This section is intended as a background of 
potential effects and does not consider either the specific manner in 
which this activity will be carried out or the mitigation that will be 
implemented, and how either of those will shape the anticipated impacts 
from this specific activity.
    The Estimated Take by the Incidental Harassment section later in 
this document will include a quantitative analysis of the number of 
individuals that are expected to be taken by this activity. The 
Negligible Impact Analysis section will include the analysis of how 
this specific activity will impact marine mammals and will consider the 
content of this section, the Estimated Take by Incidental Harassment 
section, the Proposed Mitigation section, and the Anticipated Potential 
Effects on Marine Mammal Habitat section to draw conclusions regarding 
the likely impacts of this activity on the reproductive success or 
survivorship of individuals and from that on the affected marine mammal 
populations or stocks.

Description of Sound Sources

    Harbor seals that use the four haul out sites, just beyond the 
footprint of the construction, area (M5 Northeast, M5 Southeast, Yampah 
Northwest and Yampah Southwest) (described in the previous of section, 
Description of Marine Mammals in the Area of the Specified Activity) 
and in other nearby areas may potentially experience behavioral 
disruption rising to the level of harassment from construction 
activities, which may include visual disturbance due to the presence 
and activity of heavy equipment and construction workers, airborne 
noise from the equipment, and from underwater noise during the brief 
period of sheet pile installation. Disturbed seals are likely to 
experience any or all of these stimuli, and take may occur due to any 
of these in isolation or in combination with the others.
    A significant body of past monitoring evidence indicates that 
activities, such

[[Page 67302]]

as construction, conducted in close proximity to hauled out harbor 
seals, have the potential to disturb seals that are present. Some or 
all of the seals present would be expected to move or flush in response 
to the presence of crew and equipment, though some may remain hauled 
out. Seals typically exhibit a continuum of responses, beginning with 
alert movements (e.g., raising the head), which may then escalate to 
movement away from the stimulus and possible flushing into the water. 
Flushed seals typically re-occupy the haul out within minutes to hours 
of the stimulus. In a previous study at Elkhorn Slough, harassment by 
humans (from recreational boating and fishermen) within 100 meter (m) 
was documented for harbor seals (Osborn, 1985b in Oxman 1995). Allen et 
al. (1984 in McCarthy, 2010) reported a similar distance for 
disturbance (mostly by non-powered boats) in Bolinas Lagoon (a similar 
tidal estuary in Bolinas, CA). During the Parson's Slough project, most 
of the harbor seal disturbances were land-based and occurred at 
distances of approximately 150 m or more and involved head raises or 
body repositioning. Some seals showed no disturbance reactions at all. 
Movement of vessels associated with the project was the construction 
activity most frequently associated with disturbance (38 percent), 
followed by vibratory driving of sheet piles (13 percent) and other 
construction activities (13 percent) (ESNERR, 2011). The disparity 
between the disturbance distances of the studies within Elkhorn Slough 
may be due to the fact that the Osborn (1985) was monitoring seals near 
Seal Bend, and seals in this area are likely more exposed to vessel 
traffic as the haul out is along the edge of the main channel and more 
habituated to that type of disturbance. Seals monitored during the 
Parson's Slough project (ESNERR, 2011) are not likely exposed as 
frequently to vessel traffic as their haul outs are within areas that 
are more sheltered and where watercraft is not allowed. During that 
project, seals showed disturbance to vessel movement at further 
distances (150 m or greater) and were more frequently disturbed from 
moving vessels than from pile driving activities. These seals may be 
habituated to some anthropogenic sounds (e.g., Union Pacific Railroad 
trains (UPRR)), but not to disturbance from moving vessels and 
therefore exhibited behavioral reactions at a greater distance away. 
There may also be seasonal variability in disturbance reactions, such 
as during the pupping season, as well as variation within different 
populations (Gunvalson, 2011).
    Airborne background sound (anthropogenic) of Elkhorn Slough is 
likely dominated by recreational vessel activities, UPRR trains, and 
other human activity in the area. Recreational vessels are restricted 
to the main channel of Elkhorn Slough (just outside the project area). 
Trains along the UPRR likely generate fairly high noise levels in the 
vicinity of Minhoto-Hester Marsh within the eastern portion of the 
project area. Approximately 15 to 20 trains pass along the UPRR each 
day, which is located 400 ft from the furthest eastern portion of the 
project area (Vinnedge Environmental Consulting, 2010). Noise levels 
from the UPRR trains were monitored during the construction of the 
Parson's Slough project, adjacent to the Minhoto-Hester Marsh, and 
estimated at 108 dBC Lmax (dBC can be defined as decibel (dB) with C- 
weighting which is a standard weighting of the audible frequencies 
commonly used for the measurement of peak sound pressure Level (SPL) 
and Lmax is defined as the maximum sound level during a single noise 
event). Noise is also generated from the Pick-n-Pull, a vehicle 
dismantling and recycling yard, and located approximately 300 ft from 
the project area. Agricultural equipment is operated occasionally 
within the existing uplands, including haul trucks that regularly 
travel across adjacent agricultural lands and may produce other back 
ground noise.
    Noise levels from the previous Parson's Slough project were 
monitored in 2010 and 2011. Background noise during that project was 
approximately 57dBC Lmax measured at 20 and 40 m northeast of the pile 
installation site and approximately 1.5 m above the ground (ESNERR, 
2011). Although no specific measurements have been made at the proposed 
project area, it is reasonable to believe that levels may generally be 
similar to the previous project at Parson's Slough as there is a 
similar type and degree of activity within the same type of environment 
(tidal salt marsh). Known sound levels and frequency ranges associated 
with anthropogenic sources similar to those associated to this project 
are summarized in Table 3. Details of the source types are described in 
the following table.

Table 3--Representative Airborne Sound Levels of Anthropogenic Sources--
                             dB re: 20[mu]Pa
------------------------------------------------------------------------
         Sound source            Airborne sound level       Reference
------------------------------------------------------------------------
Vibratory driving of steel      97 dBA at 10 m........  ESNERR, 2011
 sheet piles.                   90 dBA at 30 m........  (Parson's
                                                         Slough).
Heavy Earth Moving Equipment    80-90 dB at 15.24 m...  FHWA, 2015.
 (i.e., excavators, backhoes,
 and front loaders).
UPRR trains...................  108 dBC Lmax at 20m     ESNERR, 2011
                                 and 40 m (northeast    (Parson's
                                 of the pile             Slough).
                                 installation).
------------------------------------------------------------------------

    Airborne noise associated with this project includes noise from 
construction activities (including vibratory pile driving) during the 
restoration of the tidal marsh. Airborne noise produced from earth 
moving equipment (i.e., backhoes, front end loaders) for construction, 
may produce sound levels at 80-90 dB at 15.24 m (FHWA, 2015) (Table 3). 
The construction activity may generate noise above ambient levels or 
create a visual disturbance for a period of 11 months. Although the 
exact distance of disturbance from noise is unknown, it is anticipated 
that the disturbance area would be smaller than the sheet pile 
installation impact area since construction equipment does not generate 
as much noise as pile driving. Trains along the UPRR likely generate 
fairly high noise levels in the eastern portion of the project area, so 
earth moving equipment operated in this area may not elevate ambient 
noise levels when trains are present. For this project, vibratory pile 
driving will only occur over four days of the 136 total days of 
construction and conducted at low tide, to the extent practicable, when 
minimal water is present to minimize underwater sound impacts.

Acoustic Effects

    Marine mammals that occur in the project area could be exposed to 
airborne or underwater sounds associated with construction activities 
that have the potential to cause harassment, depending on their 
distance

[[Page 67303]]

from construction activities. Although there is some potential that 
seals in the water could be exposed to underwater sound during the 
proposed four days of vibratory sheet pile driving, the underwater 
footprint of acoustic effect would likely be very small due to acoustic 
shadowing within the sinuous marsh area at the project site and the low 
source level, and seals would likely be disturbed by other stimuli 
associated with the project activities. Therefore, we do not separately 
consider underwater sound and do not discuss it further in this 
document.
    Anthropogenic airborne sound could cause hauled out pinnipeds to 
exhibit changes in their normal behavior, such as reduction in 
vocalizations, or cause them to temporarily abandon their habitat and 
move further from the source. Studies by Blackwell et al. (2004) and 
Moulton et al. (2005) indicate a tolerance or lack of response to 
unweighted airborne sounds as high as 112 dB peak and 96 dB root mean 
square (rms).

Visual Disturbance

    Visual stimuli due to the presence of construction activities 
during the project have the potential to result in take of harbor seals 
at nearby haul out sites through behavioral disturbance. Harbor seals 
can exhibit a behavioral response to visual stimuli (e.g., including 
alert behavior, movement, vocalizing, or flushing). NMFS does not 
consider the lesser reactions (e.g., alert behavior) to constitute 
harassment. Upon the occurrence of low-severity disturbance (i.e., the 
approach of a vessel or person as opposed to an explosion or sonic 
boom), pinnipeds typically exhibit a continuum of responses, beginning 
with alert movements (e.g., raising the head), which may then escalate 
to movement away from the stimulus and possible flushing into the 
water. Flushed pinnipeds typically re-occupy the haul out within 
minutes to hours of the stimulus.
    Due to the likely constant combination of visual and acoustic 
stimuli resulting from the presence and use of heavy equipment and work 
crews, we assume that harbor seals present in the areas adjacent to the 
footprint of the construction area may be disturbed and do not consider 
acoustic effects separately from the effects of potential disturbance 
due to visual stimuli.

Anticipated Potentials Effects on Marine Mammal Habitat

    The primary potential impact to marine mammal habitat associated 
with the construction activity is the exclusion from the accustomed 
haul out areas. However, other potential impacts to the surrounding 
habitat from physical disturbance are also possible.

Physical Impacts to Haul Out Habitat

    Eight harbor seal haul out sites were identified in the Minhoto-
Hester Marsh Complex, which also included haul outs in portions of 
Yampah Marsh adjacent to Minhoto-Hester Marsh (see Figure 4-5 of the 
application). Four of the eight haul out sites are within the footprint 
of the construction area and identified as Small Island, M2 North, M3 
North and M3 East. Only the edge of the M2 North haul out site will be 
converted back to tidal marsh as it borders a borrow ditch that was 
previously excavated to create a berm (straight north south ditch) and 
is not a natural or historical marsh feature. The haul out sites of 
Small Island, M3 North and M3 East will remain intact. These four haul 
out sites will be temporarily unavailable to harbor seals, but once 
construction is complete, those sites will be available again (see 
Figure 4-4 of the application). During the restoration, the inability 
of seals to use suitable habitat within the footprint of the 
construction area would temporarily remove less than two percent of the 
potential haul out areas in the Slough (see Figure 4-4 of the 
application). Although the proposed action would permanently alter 
habitat within the footprint of the construction area, harbor seals 
haul out in many locations throughout the estuary, and the proposed 
activities are not expected to have any habitat-related effects that 
could cause significant or long-term consequences for individual harbor 
seals or their population. The restoration of the marsh habitat will 
have no adverse effect on marine mammal habitat, but possibly a long-
term beneficial effect on harbor seals by improving ecological function 
of the slough, inclusive of higher species diversity, increased species 
abundance, larger fish, and improved habitat.

Pile Driving Effects on Potential Foraging Habitat

    The area likely impacted by the project is relatively small 
compared to the available habitat in estuary waters in the Elkhorn 
Slough and the region. Avoidance by potential prey (i.e., fish) of the 
immediate area due to the temporary loss of this foraging habitat is 
also possible. The duration of fish avoidance of this area after pile 
driving stops is unknown, but a rapid return to normal recruitment, 
distribution and behavior is anticipated. Any impact would be short 
term and site-specific, and habitat conditions would return to their 
pre-disturbance state shortly after the cessation of in-water 
construction activities. Any behavioral avoidance by fish of the 
disturbed area would still leave significantly large areas of fish and 
marine mammal foraging habitat in the nearby vicinity.
    In addition, primary foraging habitat for harbor seals may be 
mostly outside of the project area as they primarily use the Minhoto-
Hester Marsh Complex for hauling out. Research by Oxman (1995) and 
Harvey et al. (1995) compared catch rates from trawls conducted in the 
Elkhorn Slough to species detected in seal scat and found that seals 
primarily feed between Seal Bend and the oceanic nearshore shelf in 
Monterey Bay. Oxman (1995) also radio-tagged seals and found that they 
all spent their nights diving within 0.5 to 7 km of shore, most (88 
percent) 1.25 km south of the Elkhorn Slough entrance, with the others 
(12 percent) either 4 km north at the Pajaro River mouth, or 7.25 km 
north at Sunset Beach, Santa Cruz.
    In summary, given the short daily duration of sound associated with 
individual pile driving events (four days) and the relatively small 
areas being affected, pile driving activities associated with the 
proposed action are not likely to have a permanent, adverse effect on 
the foraging habitat. Harbor seals may forage mostly in the nearshore 
oceanic shelf; therefore, NMFS does not expect the proposed action to 
have habitat-related effects on harbor seal foraging success that could 
cause significant long-term consequences for individual harbor seals or 
their population.

Proposed Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, 
NMFS must set forth the permissible methods of taking pursuant to such 
activity, and other means of effecting the least practicable impact on 
such species or stock and its habitat, paying particular attention to 
rookeries, mating grounds, and areas of similar significance, and on 
the availability of such species or stock for taking for certain 
subsistence uses.
    The primary purposes of these mitigation measures are to minimize 
disturbance from construction activities and to monitor marine mammal 
behavioral response to any potential sound and visual disturbances.
    Here we provide a description of the mitigation measures we propose 
to require as part of the proposed Authorization.

[[Page 67304]]

Timing Restrictions

    Construction work shall occur only during daylight hours when 
visual monitoring of marine mammals can be implemented. No in-water 
work will be conducted at night.

Construction Activities

    After sheet piles are installed, harbor seals would no longer be 
able to access the project area and would temporarily be displaced from 
using those four haul outs. It would be unlikely for seals to enter the 
construction area as they would need to traverse a minimum 7ft high 
berm into an area without water. However, if a seal did enter the 
project area, CADFW shall notify NMFS immediately and further action 
would be determined. In addition, to reduce the risk of potentially 
startling marine mammals with a sudden intensive sound, the contractor 
shall begin construction activities gradually each day by moving around 
the project area and starting tractor one at a time.

Pupping Season

    While CADFW does not anticipate any pupping within the project 
area, should a pup less than one week old (neonate) come within 20 m of 
where heavy machinery is working, construction activities in that area 
would be delayed until the pup has left the area. In the event that a 
pup less than one week old remains within those 20 m, NMFS would be 
consulted to determine the appropriate course of action.

Vibratory Pile Driving

    An exclusion zone of 15 m shall be established during the four days 
of pile driving to prevent the unlikely potential for physical injury 
of harbor seals due to close approach to construction equipment. Pile 
extraction or driving shall not commence (or re-commence following a 
shutdown) until marine mammals are not sighted within the exclusion 
zone for a 15-minute period. If a marine mammal enters the exclusion 
zone during sheet pile work, work shall stop until the animal leaves 
the exclusion zone or is not observed for a minimum of 15 minutes.
    Based on our evaluation of the proposed measures, as well as any 
other potential measures that may be relevant to the specified 
activity, we have preliminarily determined that the proposed mitigation 
measures provide the means of effecting the least practicable impact on 
marine mammal species or stocks and their habitat, paying particular 
attention to rookeries, mating grounds, and areas of similar 
significance.

Proposed Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of 
the MMPA states that NMFS must set forth ``requirements pertaining to 
the monitoring and reporting of such taking''. The MMPA implementing 
regulations at 50 CFR 216.104 (a)(13) indicate that requests for 
incidental take authorizations must include the suggested means of 
accomplishing the necessary monitoring and reporting that will result 
in increased knowledge of the species and of the level of taking or 
impacts on populations of marine mammals that are expected to be 
present in the proposed action area.
    Any monitoring requirement we prescribe should improve our 
understanding of one or more of the following:
     Occurrence of marine mammal species in the action area 
(e.g., presence, abundance, distribution, density).
     Nature, scope, or context of likely marine mammal exposure 
to potential stressors/impacts (individual or cumulative, acute or 
chronic), through better understanding of: (1) Action or environment 
(e.g., source characterization, propagation, ambient noise); (2) 
Affected species (e.g., life history, dive patterns); (3) Co-occurrence 
of marine mammal species with the action; or (4) Biological or 
behavioral context of exposure (e.g., age, calving or feeding areas).
     Individual responses to acute stressors, or impacts of 
chronic exposures (behavioral or physiological).
     How anticipated responses to stressors impact either: (1) 
Long-term fitness and survival of an individual; or (2) Population, 
species, or stock.
     Effects on marine mammal habitat and resultant impacts to 
marine mammals.
     Mitigation and monitoring effectiveness.

Proposed Monitoring--Visual Marine Mammal Observations

    Qualified Protected Species Observer (PSO) (a NMFS approved 
biologist) shall be used to detect, document, and minimize impacts to 
marine mammals. Monitoring would be conducted before, during, and after 
construction activities. In addition, PSOs shall record all incidents 
of marine mammal occurrence, regardless of distance from activity, and 
document any behavioral reactions in concert with distance from 
construction activities.
    Important qualifications for PSOs for visual monitoring include:
     Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of harbor seals on land or in the water with 
ability to estimate target size and distance; use of binoculars may be 
necessary to correctly identify the target;
     Advanced education in biological science or related field 
(undergraduate degree or higher required);
     Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience);
     Experience or training in the field identification of 
marine mammals, including the identification of behaviors;
     Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
     Writing skills sufficient to prepare a report of 
observations including but not limited to the number and species of 
marine mammals observed; dates and times when construction activities 
were conducted; dates and times when construction activities were 
suspended, if necessary; and marine mammal behavior; and
     Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary.
    PSOs shall be placed at the best vantage point(s) (e.g., Yampah 
Island, see Figure 2 of the monitoring plan in the application) 
practicable to monitor for marine mammals. PSOs shall also conduct 
mandatory biological resources awareness training for construction 
personnel. The awareness training shall be provided to brief 
construction personnel on marine mammals (inclusive of identification 
as needed, e.g., neonates) and the need to avoid and minimize impacts 
to marine mammals. If new construction personnel are added to the 
project, the contractor shall ensure that the personnel receive the 
mandatory training before starting work. The PSO would have authority 
to stop construction if marine mammals appear distressed (evasive 
maneuvers, rapid breathing, inability to flush) or in danger of injury.
    The CADFW has developed a monitoring plan based on discussions 
between the CADFW and NMFS. The CADFW will collect sighting data and 
behavioral responses to construction activities for marine mammal 
species observed in the region of activity during the period of 
activity. All PSOs will be trained in marine mammal identification and 
behaviors and are required to have no other construction-

[[Page 67305]]

related tasks while conducting monitoring.
    The monitoring plan involves PSOs surveying and conducting visual 
counts beginning prior to construction activities (beginning at least 
30 minutes prior to construction activities), hourly monitoring during 
construction activities, and post-activity monitoring (continuing for 
at least 30 minutes after construction activities have ended). PSOs 
will conduct monitoring from a vantage point in the marsh (e.g., Yampah 
Island) such that all seal haul outs (see Figure 2 of the monitoring 
plan in the application) are in full view. During construction 
activities, monitoring shall assess behavior and potential behavioral 
responses to noise and visual disturbance due to the proposed 
activities. To document disturbance and possible incidental take during 
construction activities, the monitoring protocols will be implemented 
at all times when work is occurring (1) in-water, (2) north of a line 
starting at 36[deg]48'38.91 N., 121[deg]45'08.03 W., and ending 
36[deg]48'38.91 N., 121[deg]45'27.11 W., (see Figure 1 of the 
monitoring plan in the application), and (3) within 30.5 m (100 ft) of 
tidal waters. When work is occurring in other areas, monitoring will 
occur for the first three days of construction and anytime there is a 
significant change in activities or location of construction activities 
within the project area. If disturbance is noted at any time, then 
monitoring will continue until there are three successive days of no 
disturbance. If there is a gap in construction activities of more than 
one week, the monitoring protocols will again be implemented for the 
first three days that construction resumes.
    Counts will be performed for harbor seals hauled out and observed 
in the water. Total counts, sex, and age (adult, juvenile, pup) will be 
recorded. Behavioral monitoring will be conducted for the duration of 
the construction activities to document any behavioral responses to 
visual (or other) disturbance, according to the disturbance scale shown 
in Table 4 below. When responses are observed, the degree of response 
(i.e., alert and flush, movement of more than one m, or change in 
direction of movement) and the assumed cause (whether related to 
construction activities or not) will be noted. Only responses at Level 
2 and 3 are considered to be take under the MMPA.

                  Table 4--Seal Response to Disturbance
------------------------------------------------------------------------
      Level            Type of response               Definition
------------------------------------------------------------------------
1...............  Alert.....................  Seal head orientation or
                                               brief movement in
                                               response to disturbance,
                                               which may include turning
                                               head towards the
                                               disturbance, craning head
                                               and neck while holding
                                               the body rigid in a u-
                                               shaped position, changing
                                               from a lying to a sitting
                                               position, or brief
                                               movement of less than
                                               twice the animal's body
                                               length. Alerts would be
                                               recorded, but not counted
                                               as a `take'.
2...............  Movement..................  Movements away from the
                                               source of disturbance,
                                               ranging from short
                                               withdrawals at least
                                               twice the animal's body
                                               length to longer
                                               retreats, or if already
                                               moving a change of
                                               direction of greater than
                                               90 degrees. These
                                               movements would be
                                               recorded and counted as a
                                               `take'.
3...............  Flush.....................  All retreats (flushes) to
                                               the water. Flushing into
                                               the water would be
                                               recorded and counted as a
                                               `take'.
------------------------------------------------------------------------

    Additional parameters will be recorded including: Atmospheric 
conditions, cloud cover, visibility conditions, air and water 
temperature, tide height, and any other disturbance (visual or noise) 
that may be noted. We require that PSOs use approved data forms. Among 
other pieces of information, CADFW will record detailed information 
about any implementation of shutdowns, including the distance of 
animals to construction activities and description of specific actions 
that ensued and resulting behavior of the animal, if any. In addition, 
CADFW will attempt to distinguish between the number of individual 
animals taken and the number of incidents of take. Additional 
requirements of PSOs include:
    (1) The PSO shall be selected prior to construction activities;
    (2) The PSO shall attend the project site prior to, during, and 
after construction activities cease each day that the construction 
activities occur;
    (3) The PSO shall search for marine mammals on the seal haul outs, 
other suitable haul out habitat, and within the waters of this area 
from the observation site. PSOs will use binoculars and the naked eye 
to search continuously for marine mammals;
    (4) The PSO shall be present during construction activities to 
observe for the presence of marine mammals in the vicinity of the 
specified activity. All such activity would occur during daylight 
hours. If inclement weather limits visibility within the area of 
effect, the PSO would perform visual scans to the extent conditions 
allow. For pile driving activities, if the 15 m area around the pile 
driving is obscured by fog or poor lighting conditions, pile driving 
will not be initiated until that area is visible;
    (5) If marine mammals are sighted by the PSO, the PSO shall record 
the number of marine mammals and the duration of their presence while 
the construction activity is occurring. The PSO would also note whether 
the marine mammals appeared to respond to the noise/visual disturbance 
and, if so, the nature of that response. The PSO shall record the 
following information: Date and time of initial sighting, tidal stage, 
weather conditions, species, behavior (activity (e.g., foraging, 
mating, etc.), group cohesiveness, direction and speed of travel, 
etc.), number, tagged animals, whether the animal(s) are in the water 
or hauled out, group composition, distance between construction 
activities and marine mammal(s), number of animals impacted, location, 
construction activities occurring at time of sighting (earth moving 
equipment, construction personnel walking/talking, pile driving etc.), 
and monitoring and mitigation measures implemented or not implemented). 
The observations would be reported to NMFS; and
    (6) A final report would be submitted summarizing all effects from 
construction activities and marine mammal monitoring during the time of 
the authorization.
    A written log of dates and times of monitoring activity will be 
kept. The log shall report the following information:

 Time of PSO arrival on site;
 Time of the commencement of construction activities;
 Distances to all marine mammals relative to the disturbance;
 Observations, notes on marine mammal behavior during 
construction activities, as described above, and on the number and 
distribution observed in the project vicinity;
 For observations of all other marine mammals (if observed) the 
time and

[[Page 67306]]

duration of each animal's presence in the project vicinity; the number 
of animals observed; the behavior of each animal, including any 
response to construction activities;
 Time of the cessation of construction activities; and
 Time of PSO departure from site.

    Individuals implementing the monitoring protocol will assess its 
effectiveness using an adaptive approach. PSOs will use their best 
professional judgment throughout implementation and seek improvements 
to these methods when deemed appropriate. Any modifications to protocol 
will be coordinated between NMFS and the CADFW.

Proposed Reporting

    A draft report will be submitted to NMFS within 90 days of the 
completion of marine mammal monitoring, or sixty days prior to the 
issuance of any subsequent IHA for this project (if required), 
whichever comes first. The report will include marine mammal 
observations pre-activity, during-activity, and post-activity of 
construction, and will also provide descriptions of any behavioral 
responses by marine mammals due to disturbance from construction 
activities and a complete description of total take estimate based on 
the number of marine mammals observed during the course of 
construction. A final report must be submitted within thirty days 
following resolution of comments on the draft report.

Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, 
section 3(18) of the MMPA defines ``harassment'' as: ``. . . Any act of 
pursuit, torment, or annoyance which (i) has the potential to injure a 
marine mammal or marine mammal stock in the wild [Level A harassment]; 
or (ii) has the potential to disturb a marine mammal or marine mammal 
stock in the wild by causing disruption of behavioral patterns, 
including, but not limited to, migration, breathing, nursing, breeding, 
feeding, or sheltering [Level B harassment].''
    All anticipated takes would be by Level B harassment resulting from 
construction activities involving temporary changes in behavior. It is 
unlikely that injurious or lethal takes would occur even in the absence 
of the planned mitigation and monitoring measures. Further, the 
proposed mitigation and monitoring measures are expected to minimize 
the possibility of take by Level A harassment, such that it is 
considered discountable.
    Given the many uncertainties in predicting the quantity and types 
of impacts of sound or visual disturbance on marine mammals, it is 
common practice to estimate how many animals are likely to be present 
within a particular distance of a given activity, or exposed to a 
particular level of sound or visual disturbance. In practice, depending 
on the amount of information available to characterize daily and 
seasonal movement and distribution of affected marine mammals, it can 
be difficult to distinguish between the number of individuals harassed 
and the instances of harassment and, when duration of the activity is 
considered, it can result in a take estimate that overestimates the 
number of individuals harassed. In particular, for stationary 
activities, it is more likely that some smaller number of individuals 
may accrue a number of incidences of harassment per individual than for 
each incidence to accrue to a new individual, especially if those 
individuals display some degree of residency or site fidelity and the 
impetus to use the site (e.g., because of foraging opportunities) is 
stronger than the deterrence presented by the harassing activity.
    In order to estimate the potential incidents of take that may occur 
incidental to the specified activity, we must first estimate the area 
subject to the disturbance that may be produced by the construction 
activities and then consider in combination information about harbor 
seals present and the number of days animals would be disturbed during 
the project. We then provide information to estimate potential 
incidents of take from disturbance as related to construction 
activities.

Introduction to Acoustic Criteria

    We use generic sound exposure thresholds to determine when an 
activity that produces sound might result in impacts to a marine mammal 
such that a take by harassment might occur. To date, no studies have 
been conducted that explicitly examine impacts to marine mammals from 
pile driving sounds or from which empirical sound thresholds have been 
established. The generic thresholds described below (Table 5) are used 
to estimate when harassment may occur (i.e., when an animal is exposed 
to levels equal to or exceeding the relevant criterion) in specific 
contexts. However, useful contextual information that may inform our 
assessment of effects is typically lacking and we consider these 
thresholds as step functions.

        Table 5--Current Acoustic Exposure Criteria for Pinnipeds
------------------------------------------------------------------------
           Criterion                Definition           Threshold
------------------------------------------------------------------------
Level B harassment              Behavioral         120 dB (non-impulse,
 (underwater).                   disruption.        continuous source,
                                                    i.e., vibratory pile
                                                    driving) (rms).
Level B harassment (airborne).  Behavioral         90 dB (harbor seals).
                                 disruption.
------------------------------------------------------------------------

Sound Produced From Construction Activities

    Any underwater noise produced during pile driving in Minhoto-Hester 
Marsh would attenuate according to the shoreline topography. In a 
narrow and relatively shallow slough, bends and topographic changes in 
the bottom would act to reflect sound and attenuate sound levels. Seals 
within the project area, from the sound source (vibratory pile driving) 
to the north bank of the main channel of Elkhorn Slough (approximately 
525-600 m; see Figure 6-4 in the application), may be impacted by noise 
and were used as the area to define Level B take estimates. Seals may 
be exposed to underwater noise that could cause behavioral harassment 
(i.e., above NMFS' 120-dB [rms re 1 [mu]Pa] behavioral harassment 
criterion) only within a small area (see Figure 6-4 of the 
application). This small section of channel defines the extent of the 
potential Level B harassment zone for underwater noise.
    Restoration activities would produce airborne noise that could 
potentially harass harbor seals that are hauled out near the 
activities. For example, airborne noise produced from earth moving 
equipment (i.e., backhoes, front end loaders) for construction, may 
produce sound levels at 80-90 dB at 15.24 m (FHWA, 2015) (Table 3). 
However, disturbance resulting from use

[[Page 67307]]

of heavy equipment or other aspects of the proposed work could occur 
due to visual stimuli or airborne noise, and the likely range within 
which seals may be disturbed would be larger than the range to the 90-
dB airborne noise disturbance criterion. Therefore, we do not evaluate 
takes specifically due to exposure to airborne noise and do not discuss 
airborne noise further in this document.

Description of Take Calculation

    The following sections are descriptions of how take was determined 
for impacts to harbor seals from noise and visual disturbance related 
to construction activities.
    Incidental take is calculated for each species by estimating the 
likelihood of a marine mammal being present within the project area 
during construction activities. Expected marine mammal presence is 
determined by past observations and general abundance during the 
construction window. For this project, the take requests were estimated 
using local marine mammal data sets, and information from state and 
federal agencies.
    The calculation for marine mammal exposures is estimated by:

Exposure estimate = N (number of animals in the area) * 132 days of 
construction activities or 4 days of pile driving activity

    All estimates proposed by the applicant and accepted by NMFS, are 
considered conservative. Construction activities will occur in 
sections, and some sections (e.g., M1) are further away from seal haul 
outs (approximately 420 m and greater). Noise from construction 
activities in more southern sections of the footprint of the 
construction area may cause fewer disturbances to seals. Not all seals 
that previously used the haul outs within the footprint of the 
construction area will use the haul outs just outside the project. The 
channel is small and the available habitat would likely not be able to 
support all 100 seals of the Minhoto-Hester Marsh Complex. Some seals 
may seek alternative haul out habitat in other parts of Elkhorn Slough. 
Pile driving will only occur for a short duration (four days) and would 
not be continuous during the day (daylight hours only). Using this 
approach, a summary of estimated takes of harbor seals incidental the 
project activities are provided in Table 6. Estimates include Level B 
harassment as a result of exposure to noise and visual disturbance 
during construction activities.
    The best scientific information available was considered for use in 
the harbor seal take assessment calculations. It is difficult to 
estimate the number of harbor seals that could be affected by 
construction activities because the animals are mainly either in the 
project area or venture near the project area to haul out during the 
day when the tide is low. Once the tidal channel is blocked and four 
haul out sites (Small Island, M2 North, M3 North and M3 East) are 
inaccessible, some seals will be able to use the alternative four hauls 
outs (M5 Northeast, M5 Southeast, Yampah Northwest and Yampah 
Southwest). Seals that use these alternative four haul outs may be 
potentially impacted from noise and visual disturbance from 
construction activities of the tidal marsh restoration, but seals that 
normally use areas in the interior tidal channel may use haul outs that 
are outside the expected area of influence of the construction 
activity.
    Various types of construction equipment (in addition to pile 
drivers) would be utilized for project activities such as dozers, 
loaders, and backhoes that may generate sound that can cause both noise 
and visual disturbance to harbor seals. Although the exact distance of 
all noise disturbances from construction activities is unknown, it is 
anticipated that the disturbance area for airborne noise would be small 
as earth moving equipment (i.e., backhoes, front end loaders) produce 
sound levels at 80-90 dB at 15.24 m and vibratory driving of sheet 
piles at 90 dBA at 30 m (Table 3) (dBA can be defined as dB with A-
weighting designed to match the average frequency response of human 
hearing and enables comparison of the intensity of noise with different 
frequency characteristics). The closest haul outs that will be 
available to seals are 43-131 m outside the footprint of the 
construction area. If seals are in the water near the project or on 
available haul outs there is a chance that seals could be exposed to 
noise and/or visual disturbance from the construction activities. 
Construction activities may impact seals using haul outs M5 Northeast, 
M5 Southeast, Yampah Northwest and Yampah Southwest.
    We assume that an average of 50 harbor seals will potentially 
occupy the alternate haul outs based on the size of the haul out 
habitat that is available. Four haul outs (out of eight) will be 
temporarily inaccessible during the construction; therefore, half of 
the seals (approximately 50 out of the 100 seals) of the Minhoto-Hester 
Marsh Complex will likely use the alternate four haul outs and 
experience disturbance from construction activities. It is presumed 
that the other half of the seals (50 seals) of the Minhoto-Hester March 
Complex will utilize other suitable haul out habitat within Elkhorn 
Slough and are not considered available to be ``taken'' during 
construction activities (Monique Fountain, ESNERR, pers. comm. 2016). 
We multiply this estimate of the number of harbor seals potentially 
available to be taken by the total number of days (132 days) the 
applicant expects construction activities to occur. Therefore, CADFW 
requests, and NMFS proposes, authorization of 132 instances of takes 
per seal for 50 harbor seals (total of 6,600 instances) by Level B 
harassment incidental to construction activities (airborne noise and 
visual disturbance) over the course of the proposed action if all of 
the estimated harbor seals present are taken by incidental harassment 
each day (Table 6).
    While the pile driving activities are planned to take place during 
slack tide to the extent possible (when harbor seals are less likely to 
be present), and only for a short duration, there may still be animals 
exposed to disturbance from pile driving even if the number of 
individual harbor seals expected to be encountered is very low. There 
are approximately 100 harbor seals that utilize Minhoto-Hester Marsh 
Complex that may be disturbed during pile driving activities. 
Additionally, there is some potential that an additional 100 harbor 
seals that occur in the adjacent Parson's Slough Complex and Yampah 
Marsh and 50 harbor seals that may be present in the main channel of 
Elkhorn Slough could also be disturbed. CADFW requests, and NMFS 
proposes, authorization of four instances of take per seal for 250 
harbor seals (total of 1,000 instances) by Level B harassment 
incidental to pile driving activities over the course of the proposed 
action if all of the estimated harbor seals present are taken by 
incidental harassment each day. This is an estimate based on the 
average number of harbor seals that potentially occupy the project area 
(and surrounding areas) (250 seals) multiplied by the total number of 
days (four days) the applicant expects pile driving activities to occur 
(Table 6). This is a very conservative estimate, as not all the seals 
are likely in or near the project area at the same time, some of which 
are due to environmental variables such as tide level and the time of 
day. In the Minhoto-Hester Marsh Complex, a maximum daily average of 40 
seals were present in the project area (on Small Island, M2 North, M3 
North, and M3 East haul out sites) and 41 seals outside the project 
area (on M5 Northeast, M5 Southeast, Yampah Northwest and Yampah 
Southwest haul

[[Page 67308]]

out sites) during the 2013 surveys, which is slightly less than the 
proposed 100 seals that may be taken. In addition, noise attenuates 
quickly due to shallow water, tidal influence and sinewy channels of 
Elkhorn Slough. NMFS considers this to be an conservative estimate by 
the applicant for the following reasons: (1) It would be unlikely that 
all 250 individual seals would be in the vicinity of the project area 
daily as there are other areas of the Slough that they likely use to 
haul out (see Figure 4-4 of the application); (2) as mentioned above, 
the haul out sites within the footprint of the construction area would 
be inaccessible to harbor seals and NMFS would not expect harbor seals 
to be affected by pile driving activities during the days/times when 
pile driving and high tide events co-occur; (3) harbor seals begin to 
leave the project area at night when they are likely foraging in 
Monterey Bay and will not be exposed to sound generated during pile 
driving that may take place during early evening hours; and, (4) based 
on previous survey effort conducted for the adjacent Parson's Slough 
project, some harbor seals moved out of the disturbance area when 
construction activities were initiated and moved west (downstream) 
towards Seal Bend or other areas of suitable habitat along the main 
channel of Elkhorn Slough (see Figure 4-4 of the application).

   Table 6--Summary of the Proposed Authorized Incidental Take by Level B Harassment of Harbor Seals From Pile
                                       Driving and Construction Activities
----------------------------------------------------------------------------------------------------------------
                                 Estimated     Proposed take                       Approximate
                                 number of     authorization                      percentage of
                                individuals     (number of                          estimated
           Species               taken per    exposures from       Abundance      stock (takes      Population
                                  day of       construction                        authorized/        trend
                                 activity     activities--132                      population)
                                  (seals)          days)                               (%)
----------------------------------------------------------------------------------------------------------------
Pacific harbor seal..........  50            6,600...........  30,968--Californ           19.37  Increased in
                                                                ia stock.                         California
                                                                                                  1981 to 2004.
Species......................  ............  Proposed Take     Abundance.......  ..............  Population
                                              Authorization                                       Trend.
                                              (Number of
                                              Exposures from
                                              Pile Driving--4
                                              days).
Pacific harbor seal..........  250           1,000...........  30,968--Californ             3.2  Increased in
                                                                ia stock.                         California
                                                                                                  1981 to 2004.
                              ----------------------------------------------------------------------------------
    Total....................  300           7,600...........  ................           24.54  ...............
----------------------------------------------------------------------------------------------------------------

    No takes by Level A harassment, serious injury, or mortality are 
expected from the disturbance associated with the construction 
activities. It is unlikely a stampede (a potentially dangerous 
occurrence in which large numbers of animals succumb to mass panic and 
rush away from a stimulus) would occur or abandonment of pups. There is 
no pupping expected within the footprint of the construction area and 
most pups are along the main channel of Elkhorn Slough. Pacific harbor 
seals have been hauling out in the project area and within the greater 
Elkhorn Slough throughout the year for many years (including during 
pupping season and while females are pregnant) while being exposed to 
anthropogenic sound sources such as recreational vessel traffic, UPRR, 
and other stimuli from human presence. The number of harbor seals 
disturbed would likely also fluctuate depending on time day and tidal 
stage. Fewer harbor seals will be present in the early morning and 
approaching evening hours as seals leave the haul out site to feed and 
they are also not present when the tide is high and the haul out is 
inundated.
    The following assumptions are made when estimating potential 
incidences of take:

 All marine mammal individuals potentially available are 
assumed to be present within the relevant area, and thus incidentally 
taken;
 An individual can only be taken once during a 24-h period;
 There were will be 136 total days of activity for project 
(four days of pile driving and 132 construction activities); and
 Exposures to sound levels at or above the relevant thresholds 
equate to take, as defined by the MMPA.

Analyses and Preliminary Determinations

Negligible Impact Analysis

    NMFS has defined ``negligible impact'' in 50 CFR 216.103 as ``. . . 
an impact resulting from the specified activity that cannot be 
reasonably expected to, and is not reasonably likely to, adversely 
affect the species or stock through effects on annual rates of 
recruitment or survival.'' A negligible impact finding is based on the 
lack of likely adverse effects on annual rates of recruitment or 
survival (i.e., population-level effects). An estimate of the number of 
Level B harassment takes alone is not enough information on which to 
base an impact determination. In addition to considering estimates of 
the number of marine mammals that might be ``taken'' through behavioral 
harassment, we consider other factors, such as the likely nature of any 
responses (e.g., intensity, duration), the context of any responses 
(e.g., critical reproductive time or location, migration), as well as 
the number and nature of estimated Level A harassment takes, the number 
of estimated mortalities, and effects on habitat.
    Construction activities associated with this project have the 
potential to disturb or displace marine mammals. No serious injury or 
mortality would be expected at all, and with mitigation we expect to 
avoid any potential for Level A harassment as a result of the Minhoto-
Hester Marsh construction activities, and none are proposed for 
authorization by NMFS. The specified activities may result in take, in 
the form of Level B harassment (behavioral disturbance) only, from 
visual disturbance and/or noise from construction activities. The 
project area is within a portion of the local habitat for harbor seals 
of the greater Elkhorn Slough and seals are present year-round. 
Behavioral disturbances that could result from anthropogenic sound or 
visual disturbance associated with these activities are expected to 
affect only a small amount of the total population

[[Page 67309]]

(i.e., likely maximum of 250 individual seals), although those effects 
could be recurring over the life of the project if the same individuals 
remain in the project vicinity. Harbor seals may avoid the area or halt 
any behaviors (e.g., resting) when exposed to anthropogenic noise or 
visual disturbance. Due to the abundance of suitable haul out habitat 
available in the greater Elkhorn Slough, the short-term displacement of 
resting harbor seals is not expected to affect the overall fitness of 
any individual animal.
    Effects on individuals that are taken by Level B harassment, on the 
basis of reports in the literature as well as monitoring from other 
similar activities, will likely be limited to reactions such as 
displacement from the area or disturbance during resting. The 
construction activities analyzed here are similar to, or less impactful 
than for Parson's Slough (and other projects) which have taken place 
with no reported injuries or mortality to marine mammals, and no known 
long-term adverse consequences from behavioral harassment. Repeated 
exposures of individuals to levels of noise or visual disturbance that 
may cause Level B harassment are unlikely to result in hearing 
impairment or to significantly disrupt foraging behavior. Many animals 
perform vital functions, such as feeding, resting, traveling, and 
socializing, on a diel cycle (i.e., 24 hour cycle). Behavioral 
reactions (such as disruption of critical life functions, displacement, 
or avoidance of important habitat) are more likely to be significant if 
they last more than one diel cycle or recur on subsequent days 
(Southall et al., 2007). However, Pacific harbor seals have been 
hauling out at Elkhorn Slough during the year for many years (including 
during pupping season and while females are pregnant) while being 
exposed to anthropogenic sound and visual sources such as vessel 
traffic, UPRR trains, and human voices from kayaking. Harbor seals have 
repeatedly hauled out to rest (inside and outside the project area) or 
pup (outside of the project area) despite these potential stimuli. The 
proposed activities are not expected to result in the alteration of 
reproductive or feeding behaviors. No births have been documented in 
the project area and it is not likely that neonates will be in the 
project area as females prefer to keep their pups along the main 
channel of Elkhorn Slough, which is outside the area expected to be 
impacted by project activities. Seals are primarily foraging outside of 
Elkhorn Slough and at night in Monterey Bay, outside the project area, 
and during times when construction activities are not occurring.
    Pacific harbor seals, as the potentially affected marine mammal 
species under NMFS jurisdiction in the action area, are not listed as 
threatened or endangered under the ESA and NMFS SARs for this stock 
have shown that the population is increasing and is considered stable 
(Carretta et al., 2016). Even repeated Level B harassment of some small 
subset of the overall stock is unlikely to result in any significant 
realized decrease in viability for the affected individuals, and thus 
would not result in any adverse impact to the stock as a whole. The 
restoration of the marsh habitat will have no adverse effect on marine 
mammal habitat, but possibly a long-term beneficial effect on harbor 
seals by improving ecological function of the slough, inclusive of 
higher species diversity, increased species abundance, larger fish, and 
improved habitat.
    In summary, this negligible impact analysis is founded on the 
following factors: (1) The possibility of injury, serious injury, or 
mortality may reasonably be considered discountable; (2) the 
anticipated incidents of Level B harassment consist of, at worst, 
temporary modifications in behavior; (3) primary foraging and 
reproductive habitat are outside of the project area and the 
construction activities are not expected to result in the alteration of 
habitat important to these behaviors or substantially impact the 
behaviors themselves (4) there is alternative haul out habitat just 
outside the footprint of the construction area, along the main channel 
of Elkhorn Slough, and in Parson's Slough that would be available for 
seals while some of the haul outs are inaccessible; (5) restoration of 
the marsh habitat will have no adverse effect on marine mammal habitat, 
but possibly a long-term beneficial effect (6) and the presumed 
efficacy of the proposed mitigation measures in reducing the effects of 
the specified activity to the level of least practicable impact. In 
addition, these stocks are not listed under the ESA or considered 
depleted under the MMPA. In combination, we believe that these factors, 
as well as the available body of evidence from other similar 
activities, demonstrate that the potential effects of the specified 
activities will have only short-term effects on individuals. The 
specified activities are not expected to impact rates of recruitment or 
survival and will therefore not result in population-level impacts.
    Based on the analysis contained herein of the likely effects of the 
specified activity on marine mammals and their habitat, and taking into 
consideration the implementation of the proposed monitoring and 
mitigation measures, we preliminarily find that the total marine mammal 
take from the construction activities will have a negligible impact on 
the affected marine mammal species or stocks.

Small Numbers Analyses

    The number of incidents of take proposed for authorization for 
harbor seals would be considered small relative to the relevant stock 
and populations (see Table 6) even if each estimated taking occurred to 
a new individual. This is an extremely unlikely scenario as, for 
pinnipeds in estuarine/inland waters, there is likely to be some 
overlap in individuals present day-to-day. As noted above, we assume 
that a maximum of 250 individual seals would be impacted during the 
course of this specified activity. We preliminarily find that small 
numbers of marine mammals will be taken relative to the populations of 
the affected species or stocks.

Impact on Availability of Affected Species for Taking for Subsistence 
Uses

    There are no relevant subsistence uses of marine mammals implicated 
by these actions. Therefore, we have determined that the total taking 
of harbor seals would not have an unmitigable adverse impact on the 
availability of such species or stocks for taking for subsistence 
purposes.

Endangered Species Act (ESA)

    No ESA-listed species under NMFS' jurisdiction are expected to be 
affected by these activities. Therefore, NMFS has determined that a 
section 7 consultation under the ESA is not required.

National Environmental Policy Act

    Pursuant to NEPA, NMFS is currently conducting an analysis to 
determine whether or not this proposed IHA may have a significant 
effect on the quality of the human environment. This analysis will be 
completed prior to the issuance or denial of the final IHA.

Proposed Authorization

    As a result of these preliminary determinations, we propose to 
issue an IHA to the CADFW for conducting the described tidal 
restoration activities in the Minhoto-Hester Marsh of Elkhorn Slough, 
provided the previously mentioned mitigation, monitoring, and reporting 
requirements are incorporated. The proposed IHA language is provided 
next.
    1. This IHA is valid for one year from the date of issuance, with 
the project

[[Page 67310]]

start date expected between October 2016 and February 2017.
    2. This IHA is valid only for construction activities (inclusive of 
vibratory pile driving) for tidal marsh restoration associated within 
the Minhoto-Hester Marsh Restoration Project (Phase 1) in Elkhorn 
Slough (Monterey, CA).
    3. General Conditions
    (a) A copy of this IHA must be in the possession of, its designees, 
and work crew personnel operating under the authority of this IHA.
    (b) The species authorized for taking is the Pacific harbor seal 
(Phoca vitulina richardii).
    (c) The taking, by Level B harassment only, is limited to the 
species listed in condition 3(b). See Table 6 (above) for numbers of 
take authorized.
    (d) The taking by injury (Level A harassment), serious injury, or 
death of the species listed in condition 3(b) of the Authorization or 
any taking of any other species of marine mammal is prohibited and may 
result in the modification, suspension, or revocation of this IHA.
    (e) The taking of any marine mammal in a manner prohibited under 
this IHA must be reported immediately to the Office of Protected 
Resources, NMFS.
    (f) CADFW shall conduct briefings between construction supervisors 
and crews, marine mammal monitoring team, and CADFW staff prior to the 
start of all construction activities for tidal marsh restoration, and 
when new personnel join the work, in order to explain responsibilities, 
communication procedures, marine mammal monitoring protocol, and 
operational procedures.
    4. Mitigation Measures
    The holder of this Authorization is required to implement the 
following mitigation measures:
    (a) Timing Restrictions: Construction work shall occur only during 
daylight hours.
    (b) Construction Activities: If a seal enters the project area 
after installation of barriers, CADFW shall notify NMFS immediately. In 
addition, the construction contractor shall begin construction 
activities gradually each day (e.g., by moving around the project area 
and starting equipment sequentially).
    (c) Pupping Season: If a pup less than one week old (neonate) comes 
within 20 m of where heavy machinery is working, construction 
activities in that area would be delayed until the pup has left the 
area. In the event that a pup less than one week old remains within 
those 20 m, NMFS would be consulted to determine the appropriate course 
of action.
    (d) Vibratory Pile Driving: An exclusion zone (shutdown zone) of 15 
m shall be established during pile driving. Pile extraction or driving 
shall not commence (or re-commence following a shutdown) until marine 
mammals are not sighted within the exclusion zone for a 15-minute 
period. If a marine mammal enters the exclusion zone during sheet pile 
work, work shall stop until the animal leaves the exclusion zone or 
until 15 minutes has elapsed without observation of the animal within 
the zone.
    5. Monitoring
    The holder of this Authorization is required to abide by the 
following monitoring conditions:
    (a) Visual Monitoring
    Qualified Protected Species Observer (PSO) (a NMFS approved 
biologist) shall be used to detect, document, and minimize impacts to 
marine mammals. Qualifications for PSOs for visual monitoring include:
    (i) Visual acuity in both eyes (correction is permissible) 
sufficient for discernment of harbor seals on land or in the water with 
ability to estimate target size and distance; use of binoculars may be 
necessary to correctly identify the target;
    (ii) Advanced education in biological science or related field 
(undergraduate degree or higher required);
    (iii) Experience and ability to conduct field observations and 
collect data according to assigned protocols (this may include academic 
experience);
    (iv) Experience or training in the field identification of marine 
mammals, including the identification of behaviors;
    (v) Sufficient training, orientation, or experience with the 
construction operation to provide for personal safety during 
observations;
    (vi) Writing skills sufficient to prepare a report of observations 
including but not limited to the number and species of marine mammals 
observed; dates and times when construction activities were conducted; 
dates and times when construction activities were suspended to avoid 
potential incidental injury from construction sound or visual 
disturbance of marine mammals observed; and marine mammal behavior; and
    (vii) Ability to communicate orally, by radio or in person, with 
project personnel to provide real-time information on marine mammals 
observed in the area as necessary.
    (b) PSO Monitoring and Data Collection
    Monitoring shall be conducted before, during, and after 
construction activities. In addition, PSOs shall record all incidents 
of marine mammal occurrence, regardless of distance from activity, and 
shall document any behavioral reactions in concert with distance from 
construction activities. PSOs will be placed at the best vantage 
point(s) practicable to monitor for marine mammals.
    The PSO shall also conduct biological resources awareness training 
for construction personnel. The awareness training will be provided to 
brief construction personnel on identification of marine mammals 
(including neonates) and the need to avoid and minimize impacts to 
marine mammals. If new construction personnel are added to the project, 
the contractor shall ensure that the personnel receive the mandatory 
training before starting work. The PSO would have authority to stop 
construction if marine mammals appear distressed (evasive maneuvers, 
rapid breathing, inability to flush) or in danger of injury. Monitoring 
requirements also include:
    (i) The holder of this Authorization must designate at least one 
biologically-trained, on-site individual(s), approved in advance by 
NMFS, to monitor marine mammal species. The PSO will be trained in 
marine mammal identification and behaviors and are required to have no 
other construction-related tasks while conducting monitoring.
    (ii) PSOs shall be provided with the equipment necessary to 
effectively monitor for marine mammals in order to record species, 
behaviors, and responses to construction activities.
    (iii) Pre-activity Monitoring: At least 30 minutes prior to the 
start of all construction activities, the PSO(s) must conduct 
observations on the number, type(s), location(s), and behavior(s) of 
marine mammals.
    (iv) Monitoring during Construction Activity: To document 
disturbance and possible incidental take during construction 
activities, the monitoring protocols shall be implemented at all times 
when work is occurring (1) in-water, (2) north of a line starting at 
36[deg]48'38.91 N., 121[deg]45'08.03 W., and ending 36[deg]48'38.91 N., 
121[deg]45'27.11 W., (see Figure 1 of the monitoring plan in the 
application), and (3) within 30.5 m (100 feet) of tidal waters. When 
work is occurring in other areas, the monitoring protocols shall be 
implemented for the first three days of construction and anytime there 
is a significant change in activities or location of construction 
activities within the project area. If disturbance is noted at any 
time, then monitoring shall continue until there are three successive 
days of no disturbance. If there is a gap in

[[Page 67311]]

construction activities of more than one week the monitoring protocols 
shall again be implemented for the first three days that construction 
resumes.
    Data collection during marine mammal monitoring shall consist of 
hourly counts of all marine mammals by species, number, sex, age class, 
a description of behavior (if possible), location, direction of 
movement, type of construction that is occurring, time construction 
activities starts and ends, any noise or visual disturbance, and time 
of the observation. When responses are observed, the type of take 
(i.e., alert and flush, movement of more than one m, or change in 
direction of movement) and the assumed cause (whether related to 
construction activities or not) shall be noted. Environmental 
conditions such as weather, visibility, temperature, tide level, 
current, and sea state shall also be recorded. A written log of dates 
and times of monitoring activity will be kept. The log shall report the 
following information:
     Time of PSO arrival on site;
     Time of the commencement of construction activities;
     Distances to all marine mammals relative to the 
disturbance;
     Observations, notes on marine mammal behavior during 
construction activities, as described above, and on the number and 
distribution observed in the project vicinity;
     For observations of all other marine mammals (if observed) 
the time and duration of each animal's presence in the project 
vicinity; the number of animals observed; the behavior of each animal, 
including any response to construction activities;
     Time of the cessation of construction activities;
     Time of PSO departure from site; and
     An estimate of the number (by species) of marine mammals 
that are known to have been disturbed by construction activities (based 
on visual observation) with a discussion of any specific behaviors 
those individuals exhibited. Disturbance must be recorded according to 
NMFS' three-point scale.
    Individuals implementing the monitoring protocol will assess its 
effectiveness using an adaptive approach. PSOs will use their best 
professional judgment throughout implementation and seek improvements 
to these methods when deemed appropriate. Any modifications to protocol 
will be coordinated between NMFS and the CADFW.
    (v) Post-activity Monitoring: At least 30 minutes following the 
cessation of all construction activities, the PSO(s) must conduct 
observations on the number, type(s), location(s), and behavior(s) of 
marine mammals.
    6. Reporting
    (a) The CADFW shall submit a draft report to NMFS within 90 days of 
the completion of marine mammal monitoring, or sixty days prior to the 
issuance of any subsequent IHA for this project (if required), 
whichever comes first. The report shall include marine mammal 
observations pre-activity, during-activity, and post-activity of 
construction, and shall also provide descriptions of any behavioral 
responses by marine mammals due to disturbance from construction 
activities and a complete description of total take estimate based on 
the number of marine mammals observed during the course of 
construction. If comments are received from the NMFS Office of 
Protected Resources on the draft report, a final report shall be 
submitted to NMFS within 30 days thereafter following resolution of 
comments on the draft report from NMFS. If no comments are received 
from NMFS, the draft report will be considered to be the final report. 
This report must contain the informational elements described above and 
in the monitoring plan of the application and at minimum shall also 
include:
    (b) Reporting injured or dead marine mammals:
    (i) In the unanticipated event that the specified activity clearly 
causes the take of a marine mammal in a manner prohibited by this IHA, 
such as an injury (Level A harassment), serious injury, or mortality, 
CADFW shall immediately cease the specified activities and report the 
incident to the NMFS' Office of Protected Resources and the West Coast 
Regional Stranding Coordinator. The report must include the following 
information:
    1. Time and date of the incident;
    2. Description of the incident;
    3. Environmental conditions (e.g., wind speed and direction, tidal 
conditions, cloud cover, and visibility);
    4. Description of all marine mammal observations and active sound 
source use in the 24 hours preceding the incident;
    5. Species identification or description of the animal(s) involved;
    6. Fate of the animal(s); and
    7. Photographs or video footage of the animal(s).
    Activities shall not resume until NMFS is able to review the 
circumstances of the prohibited take. NMFS will work with CADFW to 
determine what measures are necessary to minimize the likelihood of 
further prohibited take and ensure MMPA compliance. CADFW may not 
resume their activities until notified by NMFS.
    (ii) In the event that CADFW discovers an injured or dead marine 
mammal, and the lead PSO determines that the cause of the injury or 
death is unknown and the death is relatively recent (e.g., in less than 
a moderate state of decomposition), CADFW shall immediately report the 
incident to the NMFS' Office of Protected Resources and the West Coast 
Regional Stranding Coordinator.
    The report must include the same information identified in 6(b)(i) 
of this IHA. Activities may continue while NMFS reviews the 
circumstances of the incident. NMFS will work with the CADFW to 
determine whether additional mitigation measures or modifications to 
the activities are appropriate.
    (iii) In the event that the CADFW discovers an injured or dead 
marine mammal, and the lead PSO determines that the injury or death is 
not associated with or related to the activities authorized in the IHA 
(e.g., previously wounded animal, carcass with moderate to advanced 
decomposition, or scavenger damage), the CADFW shall report the 
incident to the NMFS' Office of Protected Resources and the West Coast 
Regional Stranding Coordinator within 24 hours of the discovery. CADFW 
shall provide photographs or video footage or other documentation of 
the stranded animal sighting to NMFS.
    This Authorization may be modified, suspended or withdrawn if the 
holder fails to abide by the conditions prescribed herein, or if NMFS 
determines the authorized taking is having more than a negligible 
impact on the species or stock of affected marine mammals.
Request for Public Comments
    We request comment on our analysis, the draft authorization, and 
any other aspect of this Notice of Proposed IHA for CADFW's tidal marsh 
restoration activities. Please include with your comments any 
supporting data or literature citations to help inform our final 
decision on the CADFW's request for an MMPA authorization.

    Dated: September 26, 2016.
Donna S. Wieting,
Director, Office of Protected Resources, National Marine Fisheries 
Service.
[FR Doc. 2016-23617 Filed 9-29-16; 8:45 am]
 BILLING CODE 3510-22-P